FORCIBLE ENTRY AND DETAINER CONSTABLE— EXECUTION-TRESPASS-DAMAGES.-1. A constable has no right to execute a writ of restitution in forcible entry and detainer until the ten days allowed for appeal from the judgment of the justice have expired. If he does so he commits a trespass, for which himself and the sureties on his bond are liable. 2. Where the plaintiff has been illegally evicted by a constable, the jury may give such damages as will compensate for the mental pain and humiliation necessarily resulting from the eviction, not to exceed the penalty of the bond, when the action is upon the bond. 3. The appeal in this case being without any apparent ground, ten per cent. damages are given on application of respondent. Affirmed. Opinion by THOMPSON, J.Slate v. Weinel. LATERAL SUPPORT OF ADJACENT LOT-DAMAGES -WAIVER BY AGREEMENT-MUNICIPAL ORDINANCE -PRESCRIPTION.-1. The owner of a lot of ground in a city acquires by prescription the right of lateral support for his ground weighted by buildings, where his building has stood upon the ground for twenty years. A grant of the right to lateral support is then presumed. 2. A city ordinance can not have a retroactive effect to divest a property owner of an easement of support for his wall which he had acquired by prescription when the ordinance was passed. 3. Where, instead of requiring defendant at her peril to support bis wall, plaintiff chose to enter into a contract permitting her to take down his wall and rebuild it, and agreeing to pay $300 for the cost of the operation, defendant was thereby relieved from the liability which she would otherwise have incurred by depriving plaintiff's wall of lateral support. 4. If, under this agreement, there was unreasonable delay in rebuilding plaintiff's wall, the payment of the $300 after the wall was rebuilt was a waiver of any claim for damages for this delay. It is immaterial that plaintiff said at the time that he paid the $300 under protest. 5. Where plaintiff, by a necessary implication, agreed that defendant might excavate by blasting, he can not recover damages for fissures in the rock of his adjacent lot not caused by a negligent prosecution of the work. Affirmed. Opinion by THOMPSON, J.-Casselberry v. Ames. TRESPASS TO REALTY-LATERAL SUPPORT-DAMAGES.-1. For injury to plaintiff's lot by depriving it of its natural lateral support, the measure of damages is the difference between the value of the lot before the injury and immediately after.it. In estimating this difference, the value of the entire lot and improvements may be taken as the basis. 2. All damages which will naturally flow directly from an act of trespass to realty, may be recovered in one action, though some of them have actually occurred since the commencement of the snit. 3. In an action of trespass, the verdict will not be disturbed in the appellate court as excessive, unless it is plain that the jury must have acted upon passion or prejudice. Affirmed. Opinion by THOMPSON, J.- Williams v. Missouri Furnace Co. PRACTICE IN APPELLATE COURT-CARRIER- NoTICE-DAMAGES.-I. Questions which have once been decided by an appellate court can not be reopened upon a second appeal in the same case. 2. If a consignee refuse to receive the goods consigned to him, it is the duty of the carrier to take such steps in relation to the goods as will advance the owner's interest and purposes consistently with a reasonable security to the carrier for his freight and charges. What it will be reasonable for the carrier to do, acting as agent of the owner of the goods, in such a juncture, is ordinarily a question of fact for the jury. He must pursue such a course as men of ordinary prudence would follow. 3. The duty of a carrier who receives goods marked and consigned to a point beyond his line is so clear that it may be declared as a matter of law that if the intermediate carrier, to whom they are to be delivered, refuses to receive the goods, the first carrier must notify the consignor or consignee of this, and is liable for damages resulting from his neglect to do so. 4. Where there was actionable negligeuce on the undisputed facts of the case, and the only question was as to damages, it is immaterial that the trial court, in putting the case to the jury on the question of negligence, added an element of negligence of which there was no proof, when the instruction could have no tendency to increase the damages. 5. The value of the goods at the place of their ultimate destinatien is the proper basis for estimating damages caused by delay in transit. 6. Where a carrier receives goods directed to a point beyond the terminus of his line, and the connecting carrier refuses to receive them, and the first errrier stores them and fails to notify consignor or consignee, the carrier is not liable for depreciation in the goods occurring after the consignor or consignee have notice of the facts. 7. In this case the damages are in excess of the amount shown by the evidence. 8. It is error to render judgmeut for a larger amount of damages than the petition claims. Reversed and remanded. Opinion by THOMPSON, J.-Lesinsky v. Great Western Despatch. EJECTMENT SERVICE UPON TENANT NECESSARY -ENJOINING VOID JUDDMENT. 1. Where the agent of an owner of real estate puts a person in possession, the mere fact that that person does not know for whom the agent acts, or for whom, or for what purpose, she holds possession, does not make her the less the tenant of the real owner for whom the agent acted. 2. A judgment in ejectment is void when the action is, not commenced against the terre tenant. Where there is a tenant in actual visible possession, the constructive possession of the owner does not sat. isfy the provisions of the law that process must be served upon the tenant in possession. Rev. Stat., sec. 2443. 3. A court of equity will enjoin the execution of a void judgment in ejectment, at the instance of one who was in quiet possession claiming title, and who was not made a party to the snit. Affirmed. Opinion by THOMPSON, J.-Charter Oak Life Ins. Co. v. Cummings. JUSTICE OF PEACE-JURISDICTION - INJUNCTION -VOID JUDGMENT.-Where a justice of the perce issues summons in a cause in which he has no jurisdie. tion under the statute defining his local jurisdiction (Rev. Stat., sec. 2889), the summons is void; defendant is not bound to obey it, and if judgment is rendered by default against defendant, that is void, and equity, on application of defendant, will interfere to restrain the execution of process upon such a judgment. Affirmed. Opinion by LEWIS, P. J.-Bornschein v. Finck. RECEIPT GIVEN BY MISTAKE.-Where the holder of defendant's note agreed to deduct $38.50 in settlement, and by mistake in calculation omitted one year's interest, and receives $1,800 instead of $2,300 then due on the note, and surrendered the note with this indorsement thereon: "Received, Dec. 30, 1880, balance in full on this note, deducting $38.50 in settlement," the receipt was open to explanation; and in an action by the holder against the maker for the balance due on the note, it was error, after the introduction of the note, to exclude all oral testimony tending to explain the receipt. Reversed and remanded. Opinion by LEWIS, P. J.-Lionberger v. Pohlman. PARTNERSHIP-PRACTICE IN APPELLATE COURTCARRIER-CONSIGNOR AND CONSIGNEE-DAMAGES. -1. The mere fact that a partnership is dissolved before the death of one of its members, does not prevent the other partner from succeeding to all the rights of action of the firm. 2. Motions not made a part of the record by being incorporated in the bill of exceptions, can not be noticed by the appellate court. 3. Where A delivered goods to defendant, a common carrier, consigned to B at another city, and tock a bill of lading and drew on the same day on the consignee and negotiated the bill of lading and draft, which was paid by the consignee before the arrival of the goods and the goods were detained by the carrier, it is not competent for the carrier to show, in an action against him by the consignee for damages to the goods caused by this delay, that the goods were detained by direction of the consignor. It is imma terial that the consignee was a factor of the consignor, and that the goods were shipped to him for sale and account. 4. The consignee, by accepting the drafts acquired a property in the goods to the extent of his advance and commissions. Beyond this, he could not recover from the carrier for damages to the goods from a delay in transit occasioned by the directions of the consiguor to the shipper after the goods were shipped. Reversed, unless plaintiff will remit so much of the damages as is in excess of the amount that plaintiff is shown to be out of pocket for advances to the con. signor. Opinion by THOMPSON, J.-Ober v. Indianapolis, etc. R. Co. NEGLIGENCE-DAMAGES-VERDICT IN DISREGARD OF THE EVIDENCE.-There is no doctrine of com parative negligence in this State. Where plaintiff was seriously hurt by the negligence of defendant, so as to be confined in a hospital for several weeks, and that her health has been impaired in consequence up to the date of trial, a verdict for nominal damages clearly indicates improper conduct on the part of the jury, and it is error on the trial court to refuse to set it aside. Reversed and remanded. Opinion by THOMPSON, J.- Welch v. McAllister. LARCENY ROBBERY - INSTRUCTIONS.-1. Where the violence was after the deportation was complete, and merely to prevent recapture, defendant was properly convicted of larceny. 2. Where the proper instruction is given as to reasonable doubt, it is no ground for reversal that it is not incorporated into every instruction given on the trial. Affirmed. Opinion by THOMPSON. J.-State v. Cunningham. MORTGAGE-SURETY-FOREclosure.-One who is surety for the payment of notes for principal and interest secured by deed of trust upon real estate in the nature of mortgage, can not compel the holder of the notes to foreclose the deed of trust and exhaust his real estate security before proceeding against the surety. The creditor is free to take his choice, and may enforce his claim against the surety before enforcing his lien, if he chooses to do so. Affirmed. Opinion by BAKEWELL, J-Colloway County Savings Bank v. Terry. EQUITY-INJUNCTION.-The Sectional Dock Company made a note for the accommodation of Morse & Co., to the order of the latter, who indorsed and delivered the same to Manion, who indorsed and negotiated the same, paying the proceeds, about $3,600, to Morse & Co., less about $500, which they owed to him. The note was dishonored at maturity, and proper steps were taken to hold the parties to it. Manion then took up the note, paying the holder in full. Morse & Co. were adjudicated bankrupts, and plaintiff is their assignee in bankruptcy. Manion proved against the estate of Morse & Co. the amount paid by him on the note, less the amount which he had received on it on his own account, and was paid a dividend of $886. Garesche is administrator of the partnership estate of the Dock Company, and Manion established a demand against that estate on the note in question of $3,318. Afterwards, plaintiff, by order of the bankrupt court, sold to himself all claims of Morse & Co. in bankruptcy, based on payments of dividends by the assignee on account of the allowances in favor of Manion, on account of said note. Garesche, administrator, has paid Manion his allowance against the Dock company, less the dividends which he had received from the estate of Morse & Co. The Dock company endeavored to prove a claim against Morse & Co. in bankruptcy for the note in question, but it was held that this could not be allowed until the note was paid by the representatives of the Dock company to Manion. At the date of the bankruptcy of Morse & Co., the Dock company had executed a large amount of commercial paper for the accommodation of Morse & Co., for which an allowance was made against the bankrupt estate, of which allowance about 75 per cent., or about $2,000, remained unpaid. On this state of facts, Wernse asks a decree restraining Garesche from paying the allowed demand against the Dock company to Manion, and decreeing that he pay It to plaintiff. Held, that there is no equity in the bill; plaintiff stands in the shoes of Morse & Co., and it is no concern of his whether the Dock company pays Manion's judgment or not. The Dock company, as accommodation maker, can owe Morse & Co., the parties accomodated, and who received the proceeds of the discount of the note, nothing on the transaction. Affirmed. Opinion by BAKEWELL, J.- Wernse v. Garesche. GARNISHMENT-SET-OFF-STIPULATION-ANSWER OF GARNISHEE.-1. The claim which the garnishee would set off against the original debtor must be one that existed at the time of the garnishment. If the set-off was acquired after the garnishment, it can not avail the garnishee as against his liability to the original defendant, in regard to which he is called upon to answer. 2. Though the answer of the garnishee, though traversed, is to be taken as true until disproved, yet, when plaintiff, after traversing the answer of the garnishee, go to trial on an agreed statement of facts, at the end of which they stipulate that any facts appearing in the transcript of the justice or papers transmitted by him may be considered by the court," they are not to be taken thereby to admit that the statements in the answer of the garnishee are "facts appearing in the case." These concluding words evidently were meant merely as a saving clause to supply accidental admissions in matters of date or detail by reference to the papers from the justice. Affirmed. Opinion by BAKEWELL, J.— Clark v. Kinealy. LIABILITY OF BANK DIRECTORS UNDER THE CONSTITUTIONAL AND STATUTORY PROVISIONS.-1. Aside from statutory or constitutional provisions, an officer of an incorporated bank is not individually responsible in an action at law for an injury resulting to a creditor of the bank from the management of the ་ bank, unless the injury is occasioned by his malicious or fraudulent act. 2. The act of 23d of April, 1877 (Session Acts, p. 35), and the act of 15th of May, 1877 ⚫ (Session Acts, p. 28), supplement the constitutional provision (Art. xii., sec. 27) in only two respects. They direct that bank officers may be proceeded against jointly and severally. and they provide for contribution between them. Under the ruling of the Supreme Court in Fusz v. Spaunhorst (67 Mo. 256). and the reasoning in that case, these statutes leave the constitutional provision imposing liability on bank directors as unenforceable as it was when they were passed. The courts are bound to apply to the language of these statutes the rules of construction applied by the Supreme Court to the constitutional provision. Under the existing laws, the constitutional provision as to liability of officers of banks for deposits received by insolvent banks, remains a dead letter, as it is not self-enforcing. Reversed and dismissed. Opinion by BAKEWELL, J.-Fischer v. Tamm. CONTRACT-AGENCY.-1. The authority of a physi cian in charge of a hospital established by a railroad company can not, in the absence of direct proof to that effect, be taken to extend to making a contract 3. for boarding, nursing and attendance of a person injured by the company, in a private boarding house. 2. On the authority of Mayberry v. Chicago, etc. R. Co., recently decided by the Supreme Court, and not yet reported, the evidence in this case is held insufficient to show a contract by the railroad company, defendant, to pay for nursing, attendance and damage to furniture, of plaintiff, into whose house a person injured by defendant's cars was admitted, where his leg and arm were amputated, on the faith of the prom. ise of the physicians and roadmaster of defendant that she should be fully compensated for all loss and annoyance and for her services in nursing the injured man. Reversed and dismissed. Opinion by BAKEWELL, J.-Boyle v. Missouri Pacific R. Co. HOMESTEAD.-1. The husband and wife, in Missouri, can make a valid conveyance of their homestead, and in order to effect this it is not necessary that anything should be said in the deed or in the acknowledgment about homestead rights. 2. A claim of homestead by the wife, recorded after the execution of a deed of trust upon her homestead, can not affect the rights of a purchaser at the foreclosure sale. Affirmed. Opinion by BAKEWELL, J.-Weigemann v. Mavsot. EMINENT DOMAIN PROCEEDINGS UNDER THE STATUTE TO CONDEMN PROPERTY FOR RAILROADTRIAL BY JURY.-1. In a proceeding by a railroad corporation to appropriate private property to public use under our statute (R. S., secs. 892, etc.) it is proper, until commissioners are appointed, to refuse leave to defendants to put in a formal answer, and to go into a formal trial of issues, involving the rights of the company to take the land. The application should be supported by affidavit; and if, by counter affidavit, it is made plain that the applicant has no color of > right, the court should decline to appoint commis:sioners. 2. But the defendant can not be altogether deprived of his right to a jury trial as to the claim for compensation, guaranteed by the Constitution. 12, sec. 4. And as, under the statute, he can only assert that right by making the denial of a jury to him ground of exception on hearing upon exception to the commissioner's report, if such denial is made ground for exception, the exception must be sustained, and a new appointment ordered, which, under the statute (Rev. Stat., sec. 896), must, on demand of either party, be by jury. The existing law seems to have been framed without regard to the provisions of the Art. Constitution of 1875 as to trial by jury in such cases on the question of compensation; but the constitutional pro vision must control, and the statute be so interpreted as to give it full effect. Reversed and remanded. Opinion by BAKEWELL, J.-West End Narrow R. Co. v. Almfroth. PRESUMPTION OF OWNERSHIP OF PERSONAL PROPERTY-OFFICER.-1. There is no legal presump. tion that moneys in the possession of one who holds a public office have been acquired by him in his public capacity. Mr. Thornton was clerk of the St. Louis Circuit Court, which, on examining his accounts, found balances against him on various accounts, and ordered that the same be paid into the city treasury, Afterwards the city sued the sureties of Thornton on his official bond, and it was judicially ascertained that he was a defaulter for moneys received by him and be. longing to the city in the sum of $80,924. The municipal assembly passed an ordinance authorizing these judgments to be satisfied upon payment of costs and $12,500. This was done, and the suits which were pending on appeal were dismissed. Thornton, meanwhile, had executed a deed conveying to his sureties, in consideration of their liability on his bond, all his property of every kind. At the expiration of his term Thornton delivered to his successor in office checks and cer tificates of deposit to secure the payment of certain special deposits that he had received as clerk, After collecting these assets and paying these special depos. its, a balance of $1,433 remains with Thornton's successor, which is claimed by the city and by the sureties of Thornton. Held, that this state of facts shows no right in the city to this fund. The city has merely the claim of a general creditor, and no lien on these funds, Affirmed. Opinion by LEWIS, P. J.-Vogel v. City of St, Louis. PLEADING-EVIDENCE-DELIVERY OF DEED.-1. Plaintiff sued as administrator of W on a note made by defendant to the order of W in his lifetime. The answer was a general denial. No attempt was made to prove that plaintiff was administrator of W. The attention of the trial court was duly called to this omission. Held, that this failure of proof is fatal to the judgment. 2. Where a deed is executed and acknowledged by the husband, and left by him with the notary to be acknowledged by the wife, if she does not appear, the question of delivery by the husband is one of fact, depending on his intention at the time he left the deed. The first signer can deliver an instrument for himself so as to bind him, though the other signatures are never added. Reversed and remanded. Opinion by LEWIS, P. J.-Gilmore v. Morris. INDEX. Cases reported in full are cited by the names of the parties. Reference to digested cases Proper parties to an action on a covenant with one See Abatement; Death by Wrongful Act; Railroads. Right to lateral support, dig. S. C. Ohio, 18. Descents and distributions as effecting aliens, in Mis- Description of real estate sold under order of court in Liability of administrator for deposit of trust funds Liability of estate for torts of administrator, dig. U. S. No right in a creditor whose claim is allowed to re- Of trust fund charged with the payment of debts, dig. Prescription in favor of a purchaser at an adminis Removal of administrator for drunkenness, dig. S. C. See Partnership. ADMIRALTY, Consolidation of cross actions for collision, dig. U. S. Construction of warranty of seaworthiness in charter. Elements of damages in marine collision, dig. U. S. S. Jurisdiction of maritime tort, dig. U. S. S. C., 237. Practice in collision cases where both parties are at Proceedings to limit liability under the statute before 35. Shipping fee of shipping commissioner, dig. U. S. S. ADMISSION TO THE BAR. Admission of women to the bar in Connecticut. C. T., ADVERSE POSSESSION. The possession of a trustee under a secret trust of AGENCY. Acts of agent as evidence against principal, dig. S. C. Collection of price of goods by the commercial trav- Distinction between factors and brokers as affecting Liability of agent for appropriation of note received Liability of agent upon contract where principal is "Liability of examiners of titles to real estate." W. Limits in the construction of a power of attorney, dig Limits of authority of agent to lend money in his own Limits of authority to sell real estate, dig. S. C. Dist. Principal not liable for purchase by agent on credit in Rights of commission merchant where advances are See Attorney and Client; Negotiable Paper. Wm. L. Mur- 9 ALTERATION OF INSTRUMENTS-Continued. If the alteration is material, honest intent and good Material alteration in church subscription, dig. S. C. Materiality of alteration, dig. S. C. Ind., 398. Voluntary destruction of note by payee cancels it, See Service of Process. AMERICAN BAR ASSOCIATION. Discussions of the. C. T., 131. Fifth annual meeting of. C. T., 61. APPEAL. A mere trustee has no right to appeal, dig. S. C. N. Y., Record must show a final judgment, dig. U. S. S. C., 196. See Appellate Practice; Equity Practice; Federal Su- APPELLATE PRACTICE. Agreement of parties to extend time within which to Contents of bill of exceptions, dig. U. S. S. C., 213 Legal presumption in favor of lower court, d3g. U.S. What amounts to a final judgment, dig. U. S. S. C., 213. Writ of error by one of joint defendanas, dig. U. §. S. See Bankruptcy; Federal Practice. ARBITRATION. Award void because of neglect of arbitrators to swear ARMY AND NAVY. Time of service as cadet in computing longevity pay, ASSAULT AND BATTERY. Evidence of physician as to the statements of patient, See Criminal Law; Damages. ASSIGNMENT. A claim against a railroad for killing stock is assign- Assignment of a part of a chose in action valid in Pending action, by plaintiff to co-plaintiff, dig. S. C. See Contract; Exemption; Insolvency; Partnership. Custody of an individual under bond amounts to cus- Punitory damages for attachment maliciously and Right of attaching creditor as to fiduciary deposit in What amounts to non-residence as a ground of, dig. S. See Fraudulent Conveyance; Trust. Admission to the bar obtained by fraud annulled, dig Attorney has no lien on subject-matter of suit, unless Attorney's authority to make compromise. Township Attorney's promise to indemnify levying officer, with- Effect of an allowance out of fund in court upon spe- Amount of debt of director to bank as affected by Certification of check which is subsequently raised, Exemption of deposits in savings banks from taxa- Not charged with notice of facts within knowledge of Notice to bank of fiduciary character of deposit, dig. Right of attaching creditor as to fiduciary deposit, dig Transmission of money according to the directions of When the transfer of stock in a bank upon its books See Contract; Negligence. BANKRUPTCY. Appellate procedure in, dig. U. S. S. C., 156. Fiduciary debt not discharged by composition pro- Limitation of action by assignee, dig. U. S. S. C., 213. See Contract. BILL OF EXCHANGE. Constructions of a corporation's signature, dig. U. S. See Negotiable Paper. BILL OF LADING. A common carrier not liable for a raised bill of lading BOND. A non-negotiable bond becomes negotiable upon be Execution of, to bind obligor, dig. S. C. Pa., 398. Liability of sureties on bond of bookkeeper for em- Liability of sureties on bond of county treasurer, dig. Waiver of rights, dig. U. S. S. C., 196. BOOK REVIEWS. American Decisions, vols. 33, 34, 35 and 36. By A. C. American Decisions Digest. By A. C. Freeman, 220. 479. |